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Smoking ban 'unenforceable'
Jackson County Examiner ^ | December 19, 2007 | Toriano L. Porter |

Posted on 12/22/2007 6:11:08 PM PST by elkfersupper

A lawyer for the owner of the Player's Club Bar and Grill in Independence has challenged in court the enforceability of the city's Clean Indoor Air Act ordinance and won.

John Carnes, an Independence attorney for Player's Club owner Jennifer Brashear, got Jackson County Circuit Court Judge Jeffrey Bushur to overturn two clean air citations given to Brashear. Municipal judges in Independence had found Brashear guilty of violating the city's health code by allowing patrons of the lounge to smoke on two separate occasions.

"There are some holes in that ordinance that basically makes it unenforceable," Carnes said. "It's an unworkable ordinance when it comes to enforcement."

City Manager Robert Heacock said the city attorney is reviewing the appeal and city staff will address perceived holes in the smoking ordinance in a timely fashion.

"The case is being reviewed by our legal department," Heacock said. "We are not sure what the next step will be."

Carnes said on April 13 a Player's Club customer claimed to have observed patrons smoking in the lounge. The person, Carnes said, contacted Heacock, who notified the Health Department.

The Health Department issues a citation, alleging violation of the city's clean air ordinance. After a hearing, the city's municipal court found Brashear in violation of the ordinance, Carnes said.

Carnes added he represented Brashear in the municipal case as well as a appeal hearing Monday before the associate court, where Bushur found Brashear not guilty based upon testimony and a review of the applicable provisions of the ordinance.

"The issue was trying to fit what you had to do to prove the person violated the ordinance," Carnes said. "That ordinance contains vague and overbroad language, making it legally impossible for the city to enforce the ordinance."

Brashear's conviction on the second citation, issued June 8, was also overturned by Bushur Monday.

In that case, Carnes said six officers from the Independence Tactical Swat Team and two patrol officers accompanied two Health Department employees in response to a a report that a person may have been smoking in the establishment. Three citations were issued, one to Brashear and two to customers.

One customer pleaded guilty in Municipal Court, the other was found not guilty in the same courtroom, while Brashear had to appeal her conviction in Municipal Court in Associate Court.

"The customer's argument was under the ordinance you have to be warned first to quit smoking before you are cited," Carnes said. "In Jennifer's case, the argument was 'what consists of a warning?' Does the sign at the front of the business that says 'no smoking allowed' constitute a warning? The way this ordinance is written, the question is, can it be enforced?"

Police spokesperson Tom Gentry said the department did not send a tactical unit to Players Club June 8. Gentry said two patrol officers were asked to assist the Health Department workers because of the intimidation factor at Player's Club that night and a nearby DWI enforcement unit's sergeant decided the unit would assist in the sting as well. The enforcement unit had just finished conducting a sobriety checkpoint, Gentry said.

"We do not send SWAT teams to enforce city ordinances," Gentry said.

Carnes said his next step is to pursue legal action in federal court if another client is cited by city officials after the associate court has determined the clean air ordinance is unenforceable.

"After the recent court test of the ordinance," Carnes said, "it is my belief that the present ordinance cannot be enforced and to do so would put the city at risk of committing federal civil rights violations."


TOPICS: Constitution/Conservatism; Culture/Society
KEYWORDS: hysteria; nannies; niconazis; pufflist; smokeaphobes; smokenazis; thugs
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The most interesting excerpt:

"six officers from the Independence Tactical Swat Team and two patrol officers accompanied two Health Department employees in response to a a report that a person may have been smoking in the establishment. Three citations were issued, one to Brashear and two to customers."

1 posted on 12/22/2007 6:11:09 PM PST by elkfersupper
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To: Gabz; SheLion; Eric Blair 2084; inneroutlaw; traviskicks

Ping.


2 posted on 12/22/2007 6:13:04 PM PST by elkfersupper
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To: elkfersupper

Great use of our police resources. ;-)


3 posted on 12/22/2007 6:17:36 PM PST by doc1019 (Fred Thompson '08)
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To: elkfersupper

Yes but it was “two SEPARATE occasions”, not simply “two occasions”. Enoughs enough, by golly. Thus, a tactical insertion was fully justified. Seriously though, ya hafta wonder if maybe there aren’t more important things to worry about these days. Just guessing.


4 posted on 12/22/2007 6:19:04 PM PST by Freedom4US
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To: elkfersupper
six officers from the Independence Tactical Swat Team and two patrol officers accompanied two Health Department employees in response to a a report that a person may have been smoking in the establishment.

Scary times we live in, aren't they? They will soon be doing the same when someone utters a racial slur, buys food with trans-fats, or says "Merry Christmas".
5 posted on 12/22/2007 6:25:07 PM PST by mmichaels1970
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To: Freedom4US

In the meantime, rapes, drug deals and murder were happening elsewhere.


6 posted on 12/22/2007 6:25:11 PM PST by doc1019 (Fred Thompson '08)
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To: elkfersupper
PUT THE CIGARETTE DOWN AND STEP AWAY FROM THE LIGHTER!
7 posted on 12/22/2007 6:26:52 PM PST by elkfersupper
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To: doc1019

Thank God for anonymous tips. Sleep Well, America!


8 posted on 12/22/2007 6:27:55 PM PST by Freedom4US
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To: elkfersupper

OMG, freeking nannies. I can see the scenario now: (cue dream music here)

“Smoking nanny sees flagrant violation of ordinance, and once he/she stops hyperventilating, furtively calls police. Meanwhile, police, while eating sugary pastries and doing little to nothing, mobilise a tactical unit because darnit, the law is the law! Those smokers are dangerous, we could all get cancer.”


9 posted on 12/22/2007 6:33:33 PM PST by Horusra (Go Fred, Go!)
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To: Horusra

how many smokers did they kill?.....swat team...for smoking cigarettes...nah, what militarization of those sworn to protect and serve.....gestapo aholes.


10 posted on 12/22/2007 6:37:15 PM PST by Alright_on_the_LeftCoast
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To: mmichaels1970
"Carnes said on April 13 a Player's Club customer claimed to have observed patrons smoking in the lounge. The person, Carnes said, contacted Heacock, who notified the Health Department."

What kind of baby called the cops? This person is pathetic. (I just self edited what I wanted to call this "person")

11 posted on 12/22/2007 6:47:29 PM PST by boop (Who doesn't love poison pot pies?)
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To: mmichaels1970
Okay, pop, hand over that kid


12 posted on 12/22/2007 6:48:27 PM PST by bill1952 (The right to buy weapons is the right to be free)
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To: elkfersupper

I don’t smoke but I think smoking in an establishment should be decided by the owner. Patrons can then go to the places that cater to their preference and avoid the ones that don’t.


13 posted on 12/22/2007 6:50:53 PM PST by Brad from Tennessee ("A politician can't give you anything he hasn't first stolen from you.")
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To: elkfersupper
six officers from the Independence Tactical Swat Team and two patrol officers accompanied two Health Department employees in response to a a report that a person may have been smoking in the establishment.

Is this what we have come to expect from LEO's?

14 posted on 12/22/2007 6:54:07 PM PST by packrat35 (Politicians would be less worthless if they were edible, or useable for packing wheel bearings.)
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To: elkfersupper

15 posted on 12/22/2007 6:55:19 PM PST by oprahstheantichrist (Stop calling them "liberals," they're Bolsheviks!)
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To: mmichaels1970
It it scary.

I'm too old to change now, but I fear what our kids may be forced to endure in the future.

16 posted on 12/22/2007 6:57:23 PM PST by HoosierHawk
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To: elkfersupper

Put out the cigarette or we tase you.

ZAP

Coming soon.


17 posted on 12/22/2007 7:00:41 PM PST by razorback-bert (Remember that amateurs built the Ark while professionals built the Titanic.)
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To: packrat35
Is this what we have come to expect from LEO's?

Yup.

I long for peace officers.

18 posted on 12/22/2007 7:01:12 PM PST by elkfersupper
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To: Brad from Tennessee
I don’t smoke but I think smoking in an establishment should be decided by the owner. Patrons can then go to the places that cater to their preference and avoid the ones that don’t.

With that attitude, the nanny state warriors and their puppet politicians may target you next.

Best to watch what you post here at Free Republic. /s

19 posted on 12/22/2007 7:02:52 PM PST by HoosierHawk
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To: doc1019
In the meantime, rapes, drug deals and murder were happening elsewhere.

The people engaged in those things can't or won't pay fines.

Thus, they are immune. It is the rest of us that have to pay.

20 posted on 12/22/2007 7:06:04 PM PST by elkfersupper
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To: elkfersupper; Just another Joe; CSM; lockjaw02; Publius6961; nopardons; metesky; Mears; ...

Nanny State Ping..........

As I type this, there is an ad on TV for “How the Grinch Stole Christmas.”

Retitled: How the Nanny-state Whiners Stole our Country


21 posted on 12/22/2007 7:30:07 PM PST by Gabz (Don't tell my mom I'm a lobbyist, she thinks I'm a piano player in a whorehouse)
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To: elkfersupper; 1stMarylandRegiment; 47carollann; A Citizen Reporter; A Cyrenian; adrian; AFLoggie; ..
Missouri ping

Low volume ping list

FReepmail me to be on, or off, this list.

Whether you believe in smoking bans or not it would seem a SWAT team is overkill.

22 posted on 12/22/2007 8:08:12 PM PST by Just another Joe (Warning: FReeping can be addictive and helpful to your mental health)
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To: elkfersupper

Health Dept employees? These folks are getting very very close to the kangaroo courts, Human Rights Tribunal in Canada. Shame on us if we allow this to continue!


23 posted on 12/22/2007 8:40:03 PM PST by gidget7 ( Vote for the Arsenal of Democracy, because America RUNS on Duncan!)
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To: Gabz; anyone

Oh, it’s enforceable. There are plenty of flunky fat undercover cops flashing badges who will be more than happy to get their jollies by slamming your head into the ground if you dare to resist after being caught smoking in a bar. (or they could be fake criminals who will shoot you in a dark alley. Who cares, the State has made you a criminal for smoking a legal product) You can’t fight back against the tyranny or you will get the Abner Louima treatment.

Another excuse to slap around law abiding citizens and claim it was justified. Ayn Rand was right...when there aren’t enough criminals just make everything illegal and create new criminals.

Resistance is futile. You will all obey.


24 posted on 12/22/2007 8:42:00 PM PST by Eric Blair 2084 (Alcohol, Tobacco and Firearms shouldn't be a federal agency...it should be a convenience store.)
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To: mmichaels1970

Hey- Merry Christmas!


25 posted on 12/22/2007 8:43:20 PM PST by mad_as_he$$ ("Has there been a code nine? Have you heard from the Doctor?")
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To: razorback-bert
Put out the cigarette or we tase you.


"Don't taze me, bra..."

26 posted on 12/22/2007 8:45:15 PM PST by Libloather (Hillary donors find their way to the cover of Time. And the very next day they're doing it...)
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To: mad_as_he$$

bang!


27 posted on 12/22/2007 8:48:51 PM PST by mmichaels1970
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To: mad_as_he$$

Merry Christmas!


28 posted on 12/22/2007 8:49:44 PM PST by mmichaels1970
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To: Gabz

Thanks for the ping!


29 posted on 12/22/2007 8:53:50 PM PST by Alamo-Girl
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To: Eric Blair 2084
Eric, although I probably won't be able to join you in the finer things due to my declining metabolsm; I would like to invite you over to my place for dinner, smokes and adult beverages.

You are a champ.

30 posted on 12/22/2007 9:19:15 PM PST by elkfersupper
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To: elkfersupper

I’m there. It would be a pleasure to meet you. That’s what is great about the internet. You get to meet other like minded individuals who you wouldn’t otherwise meet in your daily life.


31 posted on 12/22/2007 9:28:42 PM PST by Eric Blair 2084 (Alcohol, Tobacco and Firearms shouldn't be a federal agency...it should be a convenience store.)
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To: elkfersupper

I would say some are missing the point.

If you smoke, you are gonna die sooner (maybe).

So, the SWAT TEAM is just more expedient.

In a world of Fast Food Drivethrough, Microwave ovens, and Internet Movies, faster is better.

={;l)


32 posted on 12/22/2007 10:15:08 PM PST by UCANSEE2 (Just saying what 'they' won't.)
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To: elkfersupper

And while you’re at it, drop the chalupa!


33 posted on 12/23/2007 12:23:24 AM PST by SAJ
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To: gidget7
The idiotic voters in Ohio passed one of the strictest no-smoking laws in November 2006. My County Health Director is quite angry about the law and called it “ridiculous.” It’s pathetic when hubby and I have to go Vegas for hubby to enjoy a cigar with his adult beverage. I wish I lived near a state line where I can cross a border, but I’m stuck in Cleveland. Someone called a Cleveland Police Officer once on me for smoking on an outdoor patio in downtown Cleveland. Hubby and I want out of this state where we can be with happy adults. Merry Christmas, everyone!
34 posted on 12/23/2007 1:41:56 AM PST by GOP_Lady
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To: elkfersupper; Eric Blair 2084

I’ve extennded an invite to Sir Eric as well — great dude. :-)


35 posted on 12/23/2007 1:43:11 AM PST by GOP_Lady
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To: elkfersupper
"The case is being reviewed by our legal department," Heacock said. "We are not sure what the next step will be."

Of course it would never occur to a professional whore of the type called "City Manager" to let property owners and patrons decide.

Another thing that bothers me about all this chit is that these city and town ordinances are usually either civil fines or misdemeanors, both of which I believe need to be witnessed by an officer.

What happened to facing your accuser in court? Force these weak-kneed lilly-livered cowards to testify in open court and see how quickly the rat line dries up.

36 posted on 12/23/2007 3:40:43 AM PST by metesky ("Brethren, leave us go amongst them." Rev. Capt. Samuel Johnston Clayton - Ward Bond- The Searchers)
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To: Eric Blair 2084
You will all obey.

Sixty-four years of standing in the corner says I won't.

37 posted on 12/23/2007 3:43:50 AM PST by metesky ("Brethren, leave us go amongst them." Rev. Capt. Samuel Johnston Clayton - Ward Bond- The Searchers)
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To: packrat35
Is this what we have come to expect from LEO's?

Of course! Smokers are less likely to shoot back than going after murderers and rapists.

This is another example of why so many cities are witnessing crime increases....law enforcement diverted to functions inconsistent with their mission.

38 posted on 12/23/2007 3:54:09 AM PST by Erik Latranyi (The Democratic Party will not exist in a few years....we are watching history unfold before us.)
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To: elkfersupper
I'm surprised I haven't seen this posted yet.

Judge Strikes Louisville Smoking Ban

39 posted on 12/23/2007 4:05:59 AM PST by Despot of the Delta ("Never argue with an idiot. They will bring you down to their level and beat you with experience")
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To: elkfersupper

Exactly when was it that Law Enforcement Officers were required to obtain lobotomies before being accepted into the force?


40 posted on 12/23/2007 4:37:22 AM PST by BuffaloJack (Before the government can give you a dollar it must first take it from another American)
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To: Despot of the Delta

A Jackson County Missouri (Independence/KC) judge also declared the particular ordinance in this thread to be illegal when the bar owner went to court because the ordinance is poorly written. In our fair city, KC, the proposed ordinance banning smoking allows the casinos to be exempted. I would think if that one passes it too will be a court case celebre.


41 posted on 12/23/2007 6:46:39 AM PST by CARTOUCHE ( The pen is mightier than the sword and so much easier to conceal)
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To: metesky
Sixty-four years of standing in the corner says I won't.

Sixty four years standing in a corner?
Two questions:
#1 - Are you sort of triangular in the front from standing in that corner so long?
#2 - What in the heck did you do to your mom to get a, "Go stand in the corner for sixty-four years" punishment?

_. . _
O. O
. U
. 0

42 posted on 12/23/2007 6:56:08 AM PST by Just another Joe (Warning: FReeping can be addictive and helpful to your mental health)
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To: BuffaloJack
Exactly when was it that Law Enforcement Officers were required to obtain lobotomies before being accepted into the force?M

My estimation would be 1993.

43 posted on 12/23/2007 6:36:22 PM PST by elkfersupper
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To: metesky

You’re a rebel and an American Patriot. The sheeple will obey.

The founding fathers would have done something a little different in the face of this tyranny.


44 posted on 12/23/2007 9:04:25 PM PST by Eric Blair 2084 (Alcohol, Tobacco and Firearms shouldn't be a federal agency...it should be a convenience store.)
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To: Eric Blair 2084

As someone wiser than we once said, “Sheep are made for shearing.”


45 posted on 12/24/2007 2:48:43 AM PST by metesky ("Brethren, leave us go amongst them." Rev. Capt. Samuel Johnston Clayton - Ward Bond- The Searchers)
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To: BuffaloJack
Exactly when was it that Law Enforcement Officers were required to obtain lobotomies before being accepted into the force?

IMHO, it isn't so much a matter of surgical procedure as it is so many people believing that the 'law' is whatever government says it is.

46 posted on 12/24/2007 5:43:09 AM PST by MamaTexan (** Government was not made to create the Law, but to follow it **)
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To: BuffaloJack
"Exactly when was it that Law Enforcement Officers were required to obtain lobotomies before being accepted into the force?"

Don't know 'bout that, but it's a sure bet that they're required to check their consciences at the door. Any LEO who would participate in something like this is an amoral thug, plain and simple. "It's part of my job" isn't an excuse.
47 posted on 12/24/2007 5:50:21 AM PST by LIConFem (Thompson. Lifetime ACU Rating: 86 -- Hunter Lifetime ACU Rating: 92 (any combo will do, fellas))
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To: elkfersupper

Those guys look like they’re teed up to shoot one another in the back of the head, especially if they encounter someone who understands tactics who had an assistant pull a flanking maneuver on them.


48 posted on 12/24/2007 5:58:38 AM PST by Hardastarboard (DemocraticUnderground.com is an internet hate site.)
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To: CARTOUCHE

I am fortunate to live in a mid-sized West Texas city that has no smoking ban applicable to commercial establishments. They ban smking in all public buildings, but this I see as reasonable. Anyone, including thiose truly offended by smoke, might be required to enter those places. Most large stores and malls ban smoking of their own volition, again, if done by the owner, I have no problem, that is his right.

The barkeep handle is for real, I did that for quite a while. In my experience, the percentage of smokers may be a minority in the general population, but that reverses in bars. I can say this; I have never seen a non-smoking bar that lasted any time UNLESS the nannies had banned smoking in all bars. Then you see most of the patrons taking breaks to go huddle in the elements from time to time.

San Angelo has taken the rational position that the owner of a commercial establishment knows best his customers’ preference and will cater to it out of self interest. But then, we also have a Christmas creche on the courthouse lawn with no legal challenge. A remarkable island of minor freedoms I inhabit.


49 posted on 12/24/2007 6:22:25 AM PST by barkeep (Post Hoc, Ergo Propter Hoc)
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To: Despot of the Delta

Nice catch.


50 posted on 12/24/2007 5:30:44 PM PST by elkfersupper
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